Dalton Sheet Metal Co., Inc.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dalton Sheet Metal Company, Inc. and Sheet Metal Workers Local #85. Case I0-CA-9001 September 8, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on May 21, 1971, by Sheet Metal Workers Local #85, herein called the Union, and duly served on Dalton Sheet Metal Company, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on June 9, 1971, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about March 25, 1971, following a Board election in Case 10-RC-8428, the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about April27, 1971, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On June 21, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 6, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 9, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. Upon the entire record in this proceeding, the Board makes the following: I Official notice is taken of the record in the representation proceeding, Case 10-RC-8428, as the term "record" is defined in Secs. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystemr, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (CA. 4, RULING ON THE MOTION FOR SUMMARY JUDGMENT In its answer to the complaint, as in its response to the Notice To Show Cause, Respondent contends that it is not obligated to bargain with the Union because the certification issued to the Union in Case 10-RC-8428 was invalid since the Board therein erroneously overruled the challenges to the ballots of 42 employees and improperly counted their ballots in determining the Union's majority. Upon our review of the record in Case 10-RC-8428, we find no merit in this contention. Pursuant to the Regional Director's Decision and Direction of Election an election was conducted on December 3, 1970. The tally of ballots indicated that of a total of 90 ballots cast, I was for, and 39 against, the Union with 50 ballots challenged. No objections to the election were filed. After an investigation, the Regional Director issued his Supplemental Decision and Order To Open and Count Challenged Ballots on February 23, 1971, in which he overruled the challenges to 42 ballots, sustained the challenges to 7 ballots, and ordered that the remaining challenge be resolved by record testimony at a hearing in the event the revised tally of ballots shows it to be determina- tive. Respondent, thereafter, filed exceptions to the Regional Director's Supplemental Decision and Order and a supporting brief. On March 19, 1971, the Board, by telegram, denied Respondent's Request for Review of the Regional Director's Supplemental Decision and Order as raising no substantial issues warranting review. Pursuant to the Regional Director's Supplemental Decision and Order, the ballots of 42 challenged voters were opened and counted on March 22, 1971. The revised tally of ballots shows that 36 were cast for, and 40 against, the Union and the Board agent's rulings on the validity of 6 ballots were challenged by the Respondent on the ground that they were unclear as to the choice of the voters and thus void. Thereafter, the Regional Director investigated the six challenged ballots and on March 25, 1971, issued his Second Supplemental Decision and Certification of Representative in which he overruled the challenges to the ballots on the ground that the allegedly double markings were due to an excess of graphite which rubbed off when the ballots were folded and that the ballots clearly expressed the intent of the voters in favor of representation. Since such overruling resulted in a majority for the Union, the Regional Director certified the Union as exclusive bargaining represent- 1968); Golden Age Beverage Co, 167 NLRB 151 , Intertype Co v Penello, 269 F Supp. 573 (D.C Va., 1967); Follett Corp, 164 NLRB 378, enfd 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA 193 NLRB No. 12 DALTON SHEET METAL CO., INC 71 ative of the employees in the appropriate unit. Respondent thereafter filed with the Board objections to the revised tally of ballots and a supporting brief, contending that the six ballots had markings in both "Yes" and "No" squares which rendered it impossible to determine the intent of the voters. On March 26, 1971, the Regional Director issued an Addendum to Second Supplemental Decision and Certification of Representative in which he found the objections to be without merit and reaffirmed his Second Supplemental Decision and Certification of Representative. Respondent thereupon filed with the Board exceptions to the Addendum and a supporting brief. The Board, in a telegraphic communication of April 13, 1971, denied Respondent's Request for Review with respect to the Regional Director's Second Supplemental Decision and Certification of Representative and Addendum thereto as raising no substantial issues warranting review. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Georgia corporation with an office and place of business in Dalton, Georgia, where it is engaged in the fabrication and erection of metal products. During the past calendar year, a representa- tive period, Respondent sold and shipped products valued in excess of $50,000 directly to customers located outside the State of Georgia. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers Local # 85 is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Dalton, Georgia , plants, includ- ing mechanics and helpers , draftsmen, stockroom clerks and all other plant clerical employees, and janitors, but excluding office clerical employees, the sales engineer, professional employees , guards and supervisors as defined in the Act. 2. The certification On December 3, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 10, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 25, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 19, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about April 27, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since April 27, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive 2 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above , have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom , and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit , and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Dalton Sheet Metal Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers Local #85 is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Dalton, Georgia, plants, including mechanics and helpers , draftsmen, stockroom clerks and all other plant clerical employees, and janitors, but excluding office clerical employees, the sales engineer, professional employees, guards and supervi- sors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 25, 1971, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 27, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) of the Act. 6. By the aforesaid refusal to bargain , Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Dalton Sheet Metal Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Sheet Metal Workers Local # 85 as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at the Respondent's Dalton , Georgia, plants, includ- ing mechanics and helpers , draftsmen, stockroom clerks and all other plant clerical employees, and janitors, but excluding office clerical employees, the sales engineer, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of DALTON SHEET METAL CO., INC. all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at Respondent's Dalton, Georgia, plants, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Sheet Metal Workers Local #85 as the exclusive representative of the employees in the bargaining unit described below. 73 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employ- ees at the Respondent's Dalton, Georgia, plants, including mechanics and helpers, draftsmen, stockroom clerks and all other plant clerical employees, and janitors, but excluding office clerical employees, the sales engineer, professional employees , guards and supervisors as defined in the Act. Dated By DALTON SHEET METAL COMPANY, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.